Constituencies

Cases

O’Malley v An Taoiseach

[1990] ILRM 461
Hamilton
This is an application brought by the plaintiffs for an interim injunction restraining the first-named defendant from advising the President of Ireland to dissolve the present Dáil Éireann unless and until further legislation is passed by Oireachtas Éireann and in force revising the present Dáil Éireann constituencies to ensure compliance with the provisions of Article 16 of the Constitution.

The application is grounded on the affidavits of the plaintiff, both of which were sworn on 22 May 1989.

It is not necessary for met to set forth in detail the facts contained in the affidavits of these two deponents.

The grounds upon which the depondents seek the relief which they claim is that if an election were held on the basis of the existing constituencies and the numbers of members to represent these constituencies that such an election would be contrary to the provisions of the Constitution.

Article 16.2.1° of the Constitution provides that:

Dáil Éireann shall be composed of members who represent constituencies determined by law.

The present constituencies were determined by law by the Electoral (Amendment) Act 1983 (No. 36 of 1983).

‘Law’ in this context means a law, enacted by the Oireachtas which has regard to the provisions of the Constitution.

Article 16.2.2° provides that:

The number of members shall from time to time be fixed by law, but the total number of members of Dáil Éireann shall not be fixed at less than one member for each 30,000 of the population, or at more than one member for each 20,000 of the population.

Sub-Article 3 provides that:

The ratio between the number of members to be elected at any time for each constituency and the population of each constituency, as ascertained at the last preceding census, shall, so far as is practicable, be the same throughout the country.

Sub-Article 4 provides that:

The Oireachtas shall revise the constituencies at least once in every 12 years, with due regard to changes in distribution of the population, but any alterations in the constituencies shall not take effect during the life of Dáil Éireann sitting when such revision is made.

It is clear from the 1986 Census Returns exhibited in Mr O’Malley’s affidavit that since the enactment of the Electoral (Amendment) Act 1983 there have been substantial changes in the distribution of the population and that as a consequence thereof the ratio between the number of members to be elected for each constituency and the population of each constituency, as ascertained at the last preceding census, are not, so far as is practicable, the same throughout the country.

The third appendix to the Dáil Constituency Commission Report 1988 exhibited in Mr O’Malley’s affidavit deals with

Statistics relating to the existing constituencies.

These statistics disclose substantial variations from the national average.

Seventeen of the 141 constituencies show a variation in excess of 7%, eight show a variation in excess of 10% and one, Dublin South West, a variation in excess of 25% from the national average.

More important than the variation from the national average is the difference between the representation afforded to different constituencies. For example the difference between Dublin Central and Dublin South West is 39.23%, between Dublin Central and Dublin North 30.29%, the difference between Dublin Central and Dublin West is 28.16% and between Dublin Central and Wicklow is 24.81%.

The difference between Dublin North West and Dublin South West is 37.88%, the difference between Dublin North and Dublin South West is 28.94%, the difference between Dublin North West and Dublin West is 26.81%, and the difference betweeen Dublin North West and Wicklow is 23.46%.

It is clear from these figures that the ratio between the numbers of members to be elected at any time for each of these constituencies and the population of these constituencies as ascertained at the last preceding census are not the same, so far as is practicable.

The responsibility for revising the constituencies with due regard to changes *464 in the distribution of the population rests on the Oireachtas. Article 16.2.4° provides that:

The Oireachtas shall revise the constituencies at least once in every 12 years with due regard to changes in distribution of the population.

The constitutional obligation placed on the Oireachtas is not discharged by revising the constituencies once in every 12 years. They are obliged to revise the constituencies with due regard to changes in distribution of the population and when a census return discloses major changes in the distribution of the population there is a constitutional obligation on the Oireachtas to revise the constituencies.

No revision has taken place since the last census in 1986 and I am satisfied that the Oireachtas is in breach of its constitutional obligation to revise the constituencies particularly when the census discloses a major change in the distribution of population and the fact that the ratio between the number of members to be elected at any time for each constituency and the population of each constituency as ascertained at the last preceeding census is not so far as is practicable to be same throughout the country.

It is against the background that the plaintiffs have sought an order restraining the Taoiseach from advising the President to dissolve Dáil Éireann on the grounds that a subsequent general election would be based on constituencies and representation not in accordance with the provisions of Article 16 of the Constitution.

The relief which is sought in this case is, however, an order restraining the Taoiseach from advising the President to dissolve Dáil Éireann.

Article 16.3.1° provides that:

Dáil Éireann shall be summoned and dissolved as provided by section 2 of Article 13 of this Constitution.

Article 13.2.1° provides that:

Dáil Éireann shall be summoned and dissolved by the President on the advice of the Taoiseach.

Sub-Article 2 provides that:

The President may in his absolute discretion refuse to dissolve Dáil Éireann on the advice of a Taoiseach who has ceased to retain the support of a majority in Dáil Éireann.

Article 13.8.1° provides that:

The President shall not be answerable to either House of the Oireachtas or to any *465 court for the exercise and performance of the powers and function of his office or for any act done or purporting to be done by him in the exercise and performance of these powers and functions.

The Constitution quite clearly gives the right to the Taoiseach to advise the President with regard to the dissolution of Dáil Éireann.

The constitutional duty of dissolving the Dáil is vested in the President and he is not answerable to any court for the exercise and performance of this duty. The constitutional duty of advising the President in relation to this question is vested in the Taoiseach and in my opinion the Courts have no jurisdiction to place any impediment between the President and his constitutional adivsor in this important matter, which is solely the prerogative of the President.

Before coming to this conclusion, I had regard to and gave careful consideration to the very learned submissions made by Mr Clarke SC on behalf of the plaintiffs herein.

Consequently, I will refuse the application.